Sexius v The Attorney General of Saint Lucia

The right to silence consists of distinct, qualified immunities rather than one universal or absolute right. Requiring a defendant to give advance notice of a positive case does not compel evidence, reverse the presumption of innocence or make the trial unfair. A defendant intending only to put the prosecution to proof may say so. Proper inferences may be drawn where the prosecution has established a prima facie case, an inference cannot alone ground conviction, and judicial control remains. Any qualification must pursue a clear public objective and go no further than necessary. The provisions were compatible with the Constitution of St Lucia.

An accused charged with attempted murder was ordered during case management to file and serve a Defence Statement under the Criminal Code of St Lucia 2004 and Criminal Procedure Rules 2008. He failed to comply and brought a constitutional motion challenging the disclosure requirements and the provision for comments or adverse inferences.

The High Court of Justice in St Lucia declared the provisions incompatible with the Constitution. The Court of Appeal of the Eastern Caribbean Supreme Court allowed the Attorney General’s appeal and held them compatible. The central issue before the Board was whether compulsory pre-trial defence disclosure violated the rights to a fair hearing, the presumption of innocence, trial silence and protection against self-incrimination.

The Board dismissed the appeal and advised that the parties make written submissions on costs within 21 days.

1. Nature of the right to silence. The right to silence is not a single, universal or absolute right. It comprises distinct immunities with different origins, incidents and qualifications. The present issue concerned pre-trial silence about the defence and issues to be raised at trial, as explained in R v Director of Serious Fraud Office, Ex p Smith [1993] AC 1.
2. Constitutional framework. The rights relied on could be protected within the express guarantees in sections 8(1), 8(2)(a) and 8(7) of the Constitution of St Lucia, without adopting a broader construction of “protection of the law”. The question was whether the impugned provisions limited those guarantees so as to require constitutional amendment.
3. No compulsion to give evidence. Section 8(7) prohibited compulsion to give evidence at trial. A Defence Statement under section 909 of the Criminal Code of St Lucia 2004 required advance notice of the general nature of any positive defence, the matters in issue and the reasons for taking issue. It did not compel the accused to give or call evidence. An accused intending only to require the prosecution to prove its case could state that position. The reasoning in R v Tibbs [2002] Cr App R 309 and R v Rochford [2011] 1 WLR 534 supported that conclusion.
4. Presumption of innocence and adverse inferences. The prosecution retained the burden throughout. Section 912(2) prevented conviction solely on an inference under section 912(1). Before an inference could properly be drawn, a prima facie case had to exist and the evidence had to call for an answer. The Board applied the safeguards identified in Murray v United Kingdom (1996) 22 EHRR 29.
5. Fair hearing. Constituent fair-trial rights are not necessarily absolute. Following Brown v Stott [2003] 1 AC 681, any qualification of pre-trial silence had to pursue a clear and proper public objective and be no more extensive than required. The disclosure scheme served trial management, identification of issues, reasonable lines of inquiry, possible discontinuance and efficiency. It did not limit the fair-hearing guarantee, the presumption of innocence, the right not to be compelled to give evidence or the privilege against self-incrimination.
6. Unrepresented defendants. Although the appellant was legally represented, a trial judge should explain to an unrepresented defendant the nature of the Defence Statement requirement and the possible consequences of non-compliance.

1. Privy Council: On 31 July 2017, the Board dismissed the appeal and invited written submissions on costs.
2. Court of Appeal of the Eastern Caribbean Supreme Court: On 27 October 2014, allowed the Attorney General’s appeal and held sections 909 and 912 of the Criminal Code of St Lucia 2004 and rule 11.1(3)(c) of the Criminal Procedure Rules 2008 compatible with the Constitution.
3. High Court of Justice in St Lucia: On 2 October 2012, upheld the constitutional motion and declared the Defence Statement provisions incompatible with the Constitution.